London
Fischer LLP, New York (Brian A. Kalman of counsel), for
respondents-appellants.

Pollack, Pollack, Isaac & De Cicco, LLP, New York
(Jillian Rosen of counsel), for respondent.

Manzanet-Daniels, J.P., Gische, Andrias, Kern, Singh, JJ.

Order,
Supreme Court, New York County (Ellen M. Coin, J.), entered
September 15, 2016, which, to the extent appealed from as
limited by the briefs, denied defendant Harbour Mechanical
Corp.'s motion for summary judgment dismissing the
complaint and cross claims of defendants 1440 Broadway
Associates, 1440 Broadway Owner, LLC and 1440 Broadway Mgt.,
LLC (collectively, the property owner), as against it, and
denied the property owner's motion for summary judgment
dismissing the complaint as against them, affirmed, without
costs.

Plaintiff,
an operating engineer, contends that while working in the
pump room of the property owner's building, he was
injured when he stepped into an exposed opening or hole in a
metal plate [1] that caused him to fall. Harbour
Mechanical was a contractor that the property owner retained
to convert its building from a gas heating system to a Con Ed
"clean steam station" (the conversion project).
Plaintiff claims that Harbour, while working on the project,
which included removal of an oil tank and other equipment,
caused, created, exacerbated or "launche[d] a force or
instrument of harm" when it removed the tank and left a
large opening in the metal plate exposed (Espinal v
Melville Snow Contrs., 98 N.Y.2d 136, 140 [2002]).
Plaintiff contends that the opening was not dangerous until
the oil tank was removed because the opening had been beneath
the equipment (see Miller v City of New York (100
A.D.3d 561 [1st Dept 2012]).

We find
that Supreme Court correctly denied Harbour's motion for
dismissal of the complaint and cross claims against it, as
well as the property owner's motion for summary judgment
dismissing the complaint. Defendants failed to demonstrate
their entitlement to judgment as a matter of law (see
Lopez v New York Life Ins. Co., 90 A.D.3d 446');">90 A.D.3d 446 [1st Dept
2011]). Moreover, there are issues of fact whether the
exposed opening in the metal plate was open and obvious and
not otherwise inherently dangerous (see generally Powers
v 31 E 31 LLC, 123 A.D.3d 421');">123 A.D.3d 421 [1st Dept 2014]).

Plaintiff
testified at his deposition that on the day of the accident
he was working in the building's pump room, repairing a
valve on equipment that was only three or four steps away
from an exposed opening in a metal plate on the floor. While
facing the equipment he was working on, plaintiff stepped
back to reach for a tool. As he did so, he stepped into an
exposed circular opening in the metal plate, causing him to
fall backwards and strike his head on the concrete floor.

Plaintiff's
claim against the property owner is that it failed to
maintain its property in a reasonably safe condition because
the opening was a dangerous condition of which it had notice,
but failed to take remedial measures (see Basso v
Miller, 40 N.Y.2d 233, 241 [1976]). Plaintiff testified
that when he first noticed the exposed opening, a few months
before his accident, he took a picture of it with his cell
phone and showed it to property owner's manager
(Kohlbrecher). Kohlbrecher told plaintiff that he was busy at
the moment, but that later he would take a look at the
condition for himself.

Plaintiff's
claim against Harbour is that when it removed the old fuel
tank that was situated on the metal plate, Harbour launched a
force or instrument of harm by creating a dangerous condition
or making the condition less safe than it was before Harbour
did its work. Harbour accedes that it removed a tank and
other equipment during the conversion project and that the
tank was to be serviced. It denies, however, that it made any
structural changes to the metal plate or that the metal plate
was inherently dangerous. Harbour maintains that the metal
plate and any opening in it, once exposed, was open and
obvious, particularly since plaintiff knew it was there and
even took a photo of it.

Alternatively,
Harbour argues it did not owe plaintiff, a noncontracting
third party, a duty of care, and that even if it did expose
an opening in the metal plate when it removed the oil tank,
it cannot be held liable in negligence for merely doing the
work it was contractually retained to do. Harbour denies that
under the terms of its contract it had any contractual
obligation to cover up, remediate or protect any opening it
made when removing equipment from the pump room, and that the
property owner and/or subcontractors were responsible for
doing so. Harbour contends that it cannot be found to have
caused or created a dangerous condition or have launched a
force of harm because it did not make the exposed opening in
the metal plate any less safe than it was before its removal
of equipment from the pump room.

Although
both defendants argue that the exposed opening in the metal
plate was open, obvious, readily observable and known to
plaintiff, a property owner has a nondelegable duty to
maintain its premises in a reasonably safe condition, taking
into account the forseeability of injury to others
(Basso, 40 at 241). Moreover, although a defect or
hazard may be discernable, this does not end the analysis, or
compel a determination in favor of the property owner
(Westbrook v WR Activities-Cabrera Mkts., 5 A.D.3d
69, 72 [1st Dept 2004]). Plaintiff's awareness of a
dangerous condition does not negate a duty to warn of the
hazard, but only goes to the issue of comparative negligence
(Francis v 107-145 W. 135th St. Assoc., Ltd.
Partnership, 70 A.D.3d 599, 600 [1st Dept 2010]). Given
the exposed opening's proximity to equipment that
required service, the circumstances of plaintiff's
accident present an issue of fact of not only whether the
condition was open and obvious, but also whether it was
inherently dangerous (see Westbrook, 5 A.D.3d at 69,
71-73; see Rubin v Port Auth. of N.Y. & N.J., 49
A.D.3d 422, 422 [1st Dept 2008]). Some hazards, although
discernable, may be hazardous because of their nature and
location (see Westbrook at 72). Defendants did not
establish that the exposed opening - given its location in
the floor near other mechanical equipment in the pump room -
was not only open and obvious, but that there was no duty to
warn, and that the condition was not inherently dangerous
(see Cupo v Karfunkel, 1 A.D.3d 48, 51-52 [2d Dept
2003]).

A
contractual obligation, standing alone, will not give rise to
tort liability in favor of a noncontracting third party
(Espinal 98 N.Y.2d at 138]). One exception to this
broad rule is where the contracting party, in failing to
exercise reasonable care in the performance of his duties,
"launche[s] a force or instrument of harm"
(Espinal at 140). We depart from the dissent in
concluding that Harbour failed to make a prima facie showing
that it did not owe plaintiff a duty of care and that it did
not negligently cause, create or exacerbate a dangerous
condition.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Even if
Harbour&#39;s contract did not require that it cover,
remediate, fill in or repair any of the floor openings
resulting from its work, Harbour did not take even minimal
corrective measures to protect the exposed opening in the
floor after it removed the obsolete oil tank. Thus, while its
removal of the tank was in fulfillment of its contractual
obligation, a reasonable jury could find that Harbour&#39;s
leaving an exposed and unprotected opening in the floor
exposed, caused or created a dangerous condition even if
previously the metal plate containing the opening was not
unsafe. The dissent&#39;s view relies on cases where the
defendant did not owe a duty of care because the condition
the plaintiff complained of was precisely what was called for
in the defendant&#39;s contract (Fung v Japan Airlines
Co., Ltd., 9 N.Y.3d 351');">9 N.Y.3d 351 [2007]; Peluso v ERM
(63 A.D.3d 1025');">63 A.D.3d 1025');">63 A.D.3d 1025');">63 A.D.3d 1025 [2d Dept 2009]; Miller v City of New
York, 100 A.D.3d 561');">100 A.D.3d 561');">100 A.D.3d 561');">100 A.D.3d 561');">100 A.D.3d 561');">100 A.D.3d 561');">100 A.D.3d 561');">100 A.D.3d 561 [1st Dept 2012] ; Agosto v 30th
Place Holding, LLC, 73 A.D.3d 492, 492-493 [1st Dept
2010]). We take no issue with Harbour's argument, and the
dissent's view, that Harbour was contractually obligated
to remove the tank and that it fulfilled its contract by
doing so. Our view, however, is that while the metal plate
and its opening was under the tank, it was not a hazard
because the tank prevented, or at least made it difficult,
for anyone to step into that area. However, once the tank was
removed, and the opening below it exposed, the metal plate
and its opening was no longer protected. There is a view of
the facts that Harbour, by leaving the exposed opening
without any kind of warning or minimal protection, created or
caused an unsafe condition, or made the previously obscured
opening in the metal plate "less safe" than ...

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